Entitlement to Non earner benefits required trial to best determine insured's credibility.

April 19, 2014, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer





Heard Before: The Honourable Mr. Justice D.A. Broad

Date of Decision: February 20, 2014




Melissa Willoughby was injured in a car accident on July 8, 2004. She was 18 and had just finished her first year of college. She worked as a cook. She returned to work on a modified basis four months after the accident, and full time three or four months after that. She didn’t return to school until September 2005. She received IRBs from July to October 2004. In August 2009 Ms. Willoughby submitted correspondence to Dominion claiming non-earner benefits.


Dominion did not respond and a failed mediation at FSCO occurred in December 2010. Dominion now seeks a summary judgement in the matter.


Ms. Willoughby claims that Dominion and its employee Ms. Robinson inflicted wrongful mental distress, negligent delivery of benefits, bad faith for unreasonable conduct in the claims process, and aggravated, punitive and exemplary damages. At the beginning of the hearing Ms. Willoughby dismissed all action against Ms. R.


Ms. Willoughby claims she suffers from functional and cognitive impairments to her ability to carry on a normal life and work as a registered nurse. She submitted neurologist and OT reports, and medical records to support her position. Dominion did not dispute these. She also claims that had the accident not occurred it was her intention to return to school immediately for her second year.


Justice Broad examined the statutory framework and principles for non-earner benefits outlined and determined that Section 2(4) of the Schedule provides that a person suffers


"a complete inability to carry on a normal life as a result of an accident” if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.


Justice Broad then reviewed the case law and determined that


  • Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before and after the accident.
  • Consideration of a claimant's activities and life circumstances requires more than taking a snap-shot of a claimant's life in the time frame immediately preceding the accident. Rather, it involves an assessment over a reasonable period prior to the accident.
  • Determining whether the ability to engage in "substantially all" pre-accident activities has been affected all of the pre-accident activities should be considered. However some activities which the claimant identifies as being important to pre-accident life can be weighted more heavily.


Dominion led evidence by means of an affidavit that Ms. Willoughby does not meet the test for non-earner benefits in that she continued to engage in substantially all of her pre-accident activities.  Dominion points to a discrepancy between her first and second examinations for discovery with respect to returning to school the fall of 2004. On her first examination Ms. Willoughby stated that halfway through first year, and before the accident, she decided that would not return to school in September and was going to work instead. On her second examination she indicated she always intended to return for her second year.


Justice Broad then reviewed the principles governing motions for summary judgment and determined that in he was not satisfied he could make the necessary findings of fact and to apply the law to those facts, in order to make a fair and just adjudication, based upon the evidence before him. In reviewing whether he could avoid the need for a trial he was not satisfied that an adverse finding against Ms. Willoughby’s credibility was justified. Justice Broad found that there are genuine issues requiring a trial and accordingly Dominion’s motion for summary judgment was dismissed.

Posted under Accident Benefit News, Car Accidents, Disability Insurance, Fractures, Slip and Fall Injury

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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